- It is not intended to address security interests in land, which is a separate area with its own special characteristics; nor will rights of set-off and netting be addressed, which the author believes, in principle, should remain as they are at general law (though some clarification of the rules of insolvency set-off would be desirable).
- Which should be contrasted with the charge by way of legal mortgage in land law.
- Note, however, the different position concerning an unpaid seller of goods under ss 41–43 of the Sale of Goods Act 1979.
- North Western Bank v Poynter [1895] AC 56 and Lloyds Bank Ltd v Bank of America National Trust & Savings Association [1938] 2 KB 147.
- Eg Wrightson v McArthur [1921] 2 KB 807.
- Eg where a person with possession attorns to the creditor. Such an attornment may even be by the debtor itself: see Martin v Reed (1862) 11 CBNS 730, Willes J in Meyerstein v Barber (1866) LR 2 CP 38, at 52, and Lord Parker in Dublin City Distillery Co. Ltd v Doherty [1914] AC 823, at 852.
- See eg Lloyds Bank Ltd v Bank of America National Trust & Savings Association [1938] 2 KB 147.
- Dublin City Distillery Co Ltd v Doherty [1914] AC 823.
- With the possible exception of an assignment under s 136 of the Law of Property Act 1925, where it may be possible to have an absolute assignment of a beneficial interest in a chose in action.
- See LJ Atkin in Re Wait [1927] 1 Ch 606, at 625–41, and the Privy Council in Re Goldcorp Exchange Ltd [1995] 1 AC 74.
- See Lord Macnaghten in Tailby v The Official Receiver (1888) 13 App Cas 523.
- Eg the formalities required by s 136 of the Law of Property Act 1925 in relation to absolute assignments that are recognised at law, as opposed to assignments in equity (see Lord Macnaghten in William Brandt's Sons & Co v Dunlop Rubber Co Ltd [1905] AC 454, at 461–62), but care should be taken that s 53(1)(c) of that Act is not overlooked if there is to be a disposition of an equitable interest.
- Eg to support an assignment of future property (Tailby v The Official Receiver (1888) 13 App Cas 523) or an equitable charge (Re Earl of Lucan Hardinge v Cobden (1890) 45 ChD 470).
- Including LJ Millett in Re Cosslett (Contractors) Ltd [1998] Ch 495 (approved at [2001] UKHL 58, [2002] 1 AC 336), Agnew v Inland Revenue Commissioner [2001] UKPC 28, [2001] AC 710 and National Westminster Bank PLC v Spectrum Plus Ltd [2005] UKHL 41, [2005] 2 AC 680.
- See eg the approach that was taken by Mann J in The Russell Cooke Trust Co Ltd v Elliott [2007] EWHC 1443 (Ch), [2007] 2 BCLC 637 and the approach of Vos J in Gray v G-T-P Group Ltd [2010] EWHC 1772 (Ch).
- It would be necessary to show that the third party was guilty of inducing or procuring a breach of contract, which is difficult to establish: see Lord Hoffmann in OBG v Allan; Douglas v Hello; Mainstream Properties Ltd v Young [2007] UKHL 21; [2008] 1 AC 1, esp [39]–[44] and Meretz Investments NV v ACP Ltd [2007] EWCA Civ 1303, [2008] Ch 244, at [111]–[127].
- The relevant statutory provisions relate to a charge which, as created, was a floating charge, so it matters not whether the charge has crystallised.
- It has to be acknowledged that this will raise a policy issue for further debate, because some types of asset that may currently be subject to a floating charge, and so within the compass of the statutory provisions, may not fall with the general concept of trading assets.
- Contrast the position with the accounting treatment of such transactions. See eg SSAP 21, FRS 5, IAS 17 and IAS 39.
- Including assignments where the assignor remains at risk for any default by the debtors, through recourse arrangements.
- Just to confuse matters further, however, a general assignment of book debts by a trader who is an individual is registrable under s 344 of the Insolvency Act 1986, whether it is by way of security or an outright transfer by way of sale.
- Had the transaction in Lloyds & Scottish Finance Ltd v Cyril Lord Carpet Sales Ltd [1992] BCLC 609 been characterised as a charge, it would almost inevitably have been a floating charge, given the lack of control that was exercised by the financier over the underlying pools of assigned debts.
- As in Welsh Development Agency v Export Finance Co. Ltd [1992] BCC 270.
- In the absence of an argument that the transaction was a sham, deliberately designed to cloak its true nature. See eg North Central Wagon Finance Co Ltd v Brailsford [1962] 1 WLR 1288. Challenges on this basis are now rare in the field of proprietary financing transactions.
- See eg the approaches taken by Lord Herschell LC in McEntire v Crossley Bros Ltd [1895] AC 457, at 463–66, by the Court of Appeal in Re George Inglefield Ltd [1933] 1 Ch 1, by the House of Lords in Lloyds & Scottish Finance Ltd v Cyril Lord Carpet Sales Ltd [1992] BCLC 609 and by the Court of Appeal in Welsh Development Agency v Export Finance Co Ltd [1992] BCC 270.
- [1992] BCC 270.
- In this regard, it is interesting to compare the approach that was taken by Sir Nicholas Brown-Wilkinson V-C at first instance in the Welsh Development Agency case (reported at [1990] BCC 393) with the approach taken by the Court of Appeal in that case.
- See Lord Millett (giving the advice of the Privy Council) in Agnew v Inland Revenue Commissioner [2001] UKPC 28, [2001] AC 710, at [31]–[32], Lords Hoffmann and Scott (in the House of Lords) in Smith (Administrator of Cosslett (Contractors) Ltd) v Bridgend CBC [2001] UKHL 58, [2002] 1 AC 336, at [40]–[42] and at [53] and Lord Walker (in the House of Lords) in National Westminster Bank PLC v Spectrum Plus Ltd [2005] UKHL 41, [2005] 2 AC 680, at [141]. Both the Agnew case and the Spectrum Plus case involved the issue of whether an admitted security was by way of fixed or floating charge. The Cosslett case, on the other hand, also involved the question of whether the relevant part of the transaction was by way of security or was some other type of transaction. Both Lord Hoffmann and Lord Scott in Cosslett expressly approved the approach that had been taken by Lord Millett on this issue in the Agnew case. The Agnew case is sometimes also referred to as the “Brumark” case, after the name of the chargor company.
- Compare Re Marwalt Ltd [1992] BCC 32, where the assignment was held to be absolute and not by way of security, with Orion Finance Ltd v Crown Financial Management Ltd [1996] BCC 621, where the assignment was held to be by way of security. The judgment of Millett LJ in the latter case served as a warning that the approach to characterisation might change.
- Re Bond Worth Ltd [1980] Ch 288.
- [1976] 1 WLR 676.
- See eg Re Bond Worth Ltd [1980] Ch 288 and Borden (UK) Ltd v Scottish Timber Products Ltd [1981] Ch 25.
- Subject to attempts to exclude liability, which must run the gauntlet of the Unfair Contract Terms Act 1977 and the Unfair Terms in Consumer Contracts Regs 1999 (SI 1999/2083).
- See s 12 of the Sale of Goods Act 1979 (“SGA”), s 8 of the Supply of Goods (Implied Terms) Act 1973 (“SGITA”) and s 7 of the Supply of Goods and Services Act 1982 (“SGSA”). This could extend to infringement of intellectual property rights in the goods: see Niblett Ltd v Confectioners Materials Co Ltd [1921] 3 KB 387
- Ss 14(2) and (3) SGA, ss 10(2)s (3) SGITA and ss 9(2)s (5) SGSA.
- In relation to hire purchase agreements and finance leases, see Financings Ltd v Baldock [1963] QB 104, Capital Finance Co Ltd v Donati (1977) 121 SJ 270 and Lombard North Central plc v Butterworth [1987] QB 527. For conditional sale and ROT agreements, see ss 48(3) and (4) SGA.
- In relation to a conditional sale or ROT agreement, see ss 48(3) and (4) SGA and RV Ward Ltd v Bignall [1967] 1 QB 534. In relation to hire purchase and finance leases, see Overstone Ltd v Shipway [1962] 1 WLR 117 and Lombard North Central plc v Butterworth [1987] QB 527. In assessing damages it is also necessary to bear in mind the possibility that the financier may have to mitigate its loss by reference to the market for alternative customers: see In re Vic Mill Ltd [1913] 1 Ch 465, Interoffice Telephones Ltd v Robert Freeman Co Ltd [1958] 1 QB 190 and Robophone Facilities Ltd v Blank [1966] 1 WLR 1428.
- [1985] 1 WLR 111.
- The approach taken by Robert Goff LJ is questionable in light of s 48 of the SGA and the decision of the Court of Appeal in RV Ward Ltd v Bignall [1967] 1 QB 534.
- See Shiloh Spinners Ltd v Harding [1973] AC 691, Transag Haulage Ltd v Leyland Daf Finance plc [1994] 2 BCLC 88; On Demand Information plc v Michael Gerson (Finance) plc [2001] 1 WLR 155 (CA) and [2003] 1 AC 368 (HL) and More OG Romsdal Fylkesbatar AS v The Demise Charterers of the Ship “Jotunheim” [2004] EWHC 671 (Comm), [2005] 1 Lloyd's Rep 181. A recent examination of the jurisdiction to grant relief, and of the factors that would be relevant in deciding if the discretion should be exercised in favour of the applicant for relief, will be found in Celestial Aviation Trading 71 Ltd v Paramount Airways Private Ltd [2010] EWHC 185 (Comm), [2010] 1 CLC 165, a decision of Hamblen J concerning operating leases of aircraft.
- See LJ Romer in Re George Inglefield Ltd [1933] Ch 1, at 28. This assumes, of course, that it was not a transaction in which it had been agreed that the lender would confine its recovery to the security and therefore would not have recourse to the borrower for any shortfall: see Mathew v Blackmore (1857) 1 H&N 762 and De Vigier v IRC [1964] 1WLR 1073.
- It would be necessary to amend the tax rules that govern the availability of capital allowances, so as to ensure that neither the financier nor the customer would be prejudiced by the legal reclassification of such transactions.
- What follows is concerned with the system of compulsory registration of security. In addition, there are specialist registries for the registration of security over particular types of asset, which are important for priority purposes. These include the registries to do with land, ships and aircraft and the intellectual property registers for trade marks, patents and registered designs.
- The present system goes back to the Companies Act 1900, with various ad hoc accretions to the list of registrable charges in the intervening period. S 252 of the Banking Act 2009 exempted from registration charges given in favour of the Bank of England, another central bank or the European Central Bank.
- For definitional purposes, “charge” includes a mortgage (s 861(5) of the Companies Act 2006).
- See Paul and Frank Ltd v Discount Bank (Overseas) Ltd [1967] Ch 348.
- See now the Financial Collateral Arrangements (No 2) Regs 2003 (SI 2003/3226, as amended by SI 2009/2462) but the general law had established that much the same applied as a consequence of the statutory wording, particularly as to what constituted a book debt.
- Which was explored by Vos J in Gray v G-T-P Group Ltd [2010] EWHC 1772 (Ch). In August, 2010, HM Treasury launched a consultation on the implementation of EC Directive (2009/44/EC OJ L146/37 10/6/2009), which relates (inter alia) to the amendment of the Financial Collateral Arrangements Directive (2002/47/EC OJ L168/43 27/6/2002). One of the further issues raised in the consultation concerns whether all floating charges over financial collateral should be exempted from the registration requirements of s 860.
- Per Sir Nicholas Browne-Wilkinson V-C in Welsh Development Agency v Export Finance Co Ltd [1990] BCC 393, at 409–11. See, now, Voss J in Chapman v Wilson [2010] EWHC 1746 (Ch).
- With the possible exception of a floating charge over financial collateral if it falls within para (d) of the definition of a “security interest” in Reg 3 of the Financial Collateral Arrangements (No 2) Regs 1999 (SI 2003/3226, as amended by SI 2009/2462).
- [2001] UKHL 58, [2002] AC 336, at [59]–[64]. His Lordship returned to this theme in National Westminster Bank PLC v Spectrum Plus Ltd [2005] UKHL 41, [2005] 2 AC 680, at [107].
- As an equitable lien is not created, but arises by operation of law, it is not registrable.
- Ie the charge is avoided as against the company in liquidation or administration, as represented by its liquidator or administrator: Smith (Administrator of Cosslett (Contractors) Ltd) v Bridgend CBC [2001] UKHL 58, [2002] 1 AC 336.
- See LJ Romer in Re Ehrmann Bros Ltd [1906] 2 Ch 697 and Lord Brightman in Victoria Housing Estates Ltd v Ashpurton Estates Ltd [1983] Ch 110.
- Re CL Nye Ltd [1971] Ch 442.
- Ss 860(4) and (5) of the 2006 Act.
- Sometimes referred to as the “invisibility period”.
- Orion Finance Ltd v Crown Financial Management Ltd [1996] BCC 621, at 631–35.
- More correctly, “personal chattels” as defined by s 4 of the Bills of Sale Act 1878, but there are several exceptions contained in both that definition and in the definition of a “bill of sale” in s 4 (eg ships and foreign goods).
- In addition, the Bills of Sale Act 1878 requires (subject to certain exceptions) the registration of an absolute bill of sale that is given by an individual by way of the transfer in writing of his property in the goods.
- A difficulty that was recognised by Lord Macnaghten in Thomas v Kelly & Baker (1888) 13 App Cas 506, at 517.
- This is subject to the Agricultural Credits Act 1928.
- With respect to aircraft, railway rolling stock and space assets, see also the UNIDROIT Convention on International Interests in Mobile Equipment of 2001 (usually referred to as the Cape Town Convention), which has not yet been adopted by the UK.
- Ie trade marks, patents and registered designs.
- The position concerning shares and similar investment securities will not be examined, particularly in light of the special considerations that arise in the case of uncertificated securities that are dealt with through the CREST system.
- Cheah Theam Swee v Equiticorp Finance Group Ltd [1992] 1AC 472. However, the parties to such an agreement should bear in mind the potential pitfall of the decision in Re Portbase Clothing Ltd [1993] Ch 388 in which it was held that where, by agreement, the fixed chargee conferred priority upon a floating chargee, the preferential creditors could assert their statutory priority ahead of both charges. Presumably the same result would apply in favour of the rights of a liquidator and of unsecured creditors under ss 176ZA and 176A of the Insolvency Act 1986. As to an agreement regulating the priority for further advances, see s 94(1) of the Law of Property Act 1925 and s 49 of the Land Registration Act 2002. For a discussion of how a priority agreement might (or might not) be affected by the rule against deprivation of assets in an insolvency of a party to the arrangement, see the recent decision of the Court of Appeal in Perpetual Trustee Co Ltd v BNY Corporate Trustee Services Ltd [2009] EWCA Civ 1160. The Supreme Court has granted permission to hear an appeal against the decision of the Court of Appeal. It is also interesting to note that the US Bankruptcy Court for the Southern District of New York, dealing with the same facts and documentation but applying the provisions of the US Bankruptcy Code, reached a contrary outcome to that of the Court of Appeal: Lehman Brothers Special Financing Inc v BNY Corporate Trustee Services Ltd CH 11 Case No 08–13555 Adv No 09–01242 (25/1/2010).
- See s 205(1)(xxi) of the Law of Property Act 1925.
- Lloyd v Banks (1868) LR 3 Ch App 488.
- S 199(1)(ii)(a). For an application of the principle of constructive notice, in the context of an assignment of a life policy, see Spencer v Clarke (1878) LR 9 ChD 137.
- Bailey v Barnes [1894] 1 Ch 25, at 35; Abigail v Lapin [1934] AC 491, at 505–06. See also the approach taken by Millett J at first instance in Macmillan Inc. v Bishopsgate Investment Trust (No 3) [1995] 1 WLR 978, at 1000 and 1014. This particular aspect did not arise in the judgments in the Court of Appeal, which affirmed the result at first instance on other grounds (at [1996] 1 WLR 387).
- [1895] 2 QB 539, at 545–46. See also Neill J in Feuer Leather Corp v Frank Johnstone & Sons [1981] Comm LR 251 (a sale of goods case).
- See Millett J in Macmillan Inc v Bishopsgate Investment Trust (No 3) [1995] 1 WLR 978, at 1000, and R Goode, Commercial Law (LexisNexis, 3rd edn, 2004), 666.
- [1995] 1 WLR 978, at 1000.
- See Slade J in Siebe Gorman & Co Ltd v Barclays Bank Ltd [1979] 2 Lloyd's Rep 142, at 160, and the cases therein mentioned. There is a continuing debate in England as to whether typing details of the restriction upon the Form MG01 (and similar forms), when it is sent to the Registrar of Companies, might be sufficient to give constructive notice of the restriction. Of course, where a person does search and, in addition to obtaining a copy of the charges register, also obtains a copy of the form on which the negative pledge provision has been typed then he will have express notice.
- S 21 of the Sale of Goods Act 1979. A example of this rule is to be found in The Shizelle [1992] 2 Lloyds Rep 444.
- Ie s 24 of the Sale of Goods Act 1979 and s 8 of the Factors Act 1889 (a further disposition by a seller who remains in possession) and s 25(1) of the Sale of Goods Act and s 9 of the Factors Act (a disposition by a purchaser or a person who has agreed to buy and obtained possession).
- A gloss on this rule arises by the application of the doctrine of tabula in naufragio, by which a person with a later equitable interest, not being by way of security, who gets in the legal title knowing of an earlier equitable interest, can overreach the earlier equitable interest, provided he did not have notice of the earlier equitable interest when he gave value for the acquisition of his own equitable interest. It will not apply where the legal interest is got in from a trustee for the earlier equitable interest: see Macmillan Inc v Bishopsgate Investment Trust (No 3) [1995] 1 WLR 978, at 1003 to 1004.
- Assuming that there is no agreement between those with potentially competing interests or that a floating charge is involved.
- Dearle v Hall, Loveridge v Cooper (1828) 3 Russ 1, 38 ER 475.
- The rule in Dearle v Hall will apply even where one of the competing interests is that of an absolute or legal assignee under s 136 of the Law of Property Act 1925: see Phillips J in E Pfeiffer Weinkellerei-Weineinkauf GmbH v Arbuthnot Factors Ltd [1988] 1 WLR 150, at 161.
- The rule does not apply for the benefit of a volunteer seeking to assert priority over an earlier interest: United Bank of Kuwait PLC v Sahib [1997] Ch 197, at 119–20.
- This point was discussed but left unresolved by Phillips J in E Pfeiffer Weinkellerei-Weineinkauf GmbH v Arbuthnot Factors Ltd [1988] 1 WLR 150, at 163 and it was conceded in Compaq Computer Ltd v Abercorn Group Ltd [1991] BCC 484 (see at 500).
- See Eve J in Hill v Peters [1918] 2 Ch 273, at 297, the House of Lords in BS Lyle v Rosher [1959] 1 WLR 8 and the discussion in Compaq Computer Ltd v Abercorn Group Ltd [1991] BCC 484, at 499–500. It is clear from BS Lyle v Rosher that the rule in Dearle v Hall will apply to successive assignments of the same interest, where the assignor did have an interest capable of assignment at the time of the first of those assignments, albeit that the assignor thereby had apparently deprived itself of anything that it could further assign under the subsequent assignment.
- See Lord Oliver in Abbey National Building Society v Cann [1991] 1 AC 56, at 89–93, and Jonathan Parker LJ in Whale v Viasystems Technograph Ltd [2002] EWCA Civ 480.
- Re Florence Land and Public Works Co, ex parte Moor (1887) 10 Ch D 530.
- Hamer v London, City & Midland Bank Ltd (1918) 87 LJKB 973.
- Re Benjamin Cope & Sons Ltd [1914] 1 Ch 800.
- Re Automatic Bottle Makers [1926] Ch 412.
- Re Benjamin Cope & Sons Ltd [1914] 1 Ch 800.
- Ashborder BV v Green Gas Power Ltd [2004] EWHC 1517 (Ch), [2005] BCC 634.
- Re Borax Co. [1901] 1 Ch 326.
- Re Florence Land (supra n 85) and Hubbuck v Helms (1887) 56 LJ Ch 536. Such transactions have been held to crystallise the charge. See eg Fire Nymph Products Pty Ltd v Heating Centre Pty Ltd (1992) 7 ACSR 365; Re Woodroffes (Musical Instruments) Ltd [1986] Ch 366; Re Real Meat Co Ltd [1996] BCC 254.
- Evans v Rival Granite Quarries Ltd [1910] 2 KB 979.
- Crystallisation is the process by which a charge ceases to be a floating charge and becomes a fixed charge, with the consequence that, as between the chargee and the chargor, the latter's liberty to deal with its assets in the ordinary course of business is terminated. A charge will crystallise if the chargee takes enforcement action, if the chargor goes into liquidation or otherwise permanently ceases business (Evans v Rival Granite Quarries Ltd [1910] 2 KB 979; Fire Nymph Products Pty Ltd v Heating Centre Pty Ltd (1992) 7 ACSR 365;Re Woodroffes (Musical Instruments) Ltd [1986] Ch 366; Re Real Meat Co Ltd [1996] BCC 254) or upon other circumstances as prescribed in the charge (Re Brightlife Ltd [1987] Ch 200; Re Real Meat Co Ltd).
- What follows does not deal with the priority of the proprietor of a legal charge over registered land, to which the provisions of s 49 of the Land Registration Act 2002 apply.
- As used to be case, for instance, under the rule in Hopkinson v Rolt (1861) 9 HL Cas 514.
- Devaynes v Noble, Clayton's Case (1816) LJ Ch 256, 35 ER 767.
- This was the position under the general law before s 94: see Deeley v Lloyds Bank Ltd [1912] AC 756.
- [1979] 2 Lloyd's Rep 142.
- West v Williams [1899] 1 Ch 132.
- See Parts IV and V of the Report of the Committee on Consumer Credit, CMND 4596.
- AL Diamond, A Review of Security Interests in Property (London, HMSO, 1989).
- See ch 12 of Modern Company Law for a Competitive Economy: Final Report (2001 URN 01/942).
- “Registration of Security Interests: Company Charges and Property other than Land”, Consultation Paper No 164 (London, TSO, July 2002).
- “Company Security Interests, a Consultative Report”, Consultation Paper No 176 (London, TSO, August 2004).
- “Company Security Interests: Final Report”, Law Com No 296 (London, TSO, August 2005, Cm 6654). Copies of the three Law Commission documents were made available at its website: www.lawcom.gov.uk.
- “Registration of Charges Created by Companies and Limited Liability Partnerships: Proposals to Amend the Current Scheme and Relating to Specialist Resisters”, issued on 12 March, 2010 and available at www.bis.gov.uk/Consultations/registration-of-charges. A further set of questions for consultation was circulated in August 2010.
- In pursuance of the requirements of EC Directive 2009/44/EC (OJ L146/37 10/6/2009).
- 2002/47/EC OJ L168/43 27/6/2002.
- See also the Personal Property Security Acts of the various Canadian provinces and of New Zealand. It is also worth noting that UNCITRAL put forward a legislative guide on security interests for adoption by states (a draft of which was set out in the UNCITRAL Yearbook, Vol XXXVI, 2005, documents A/CN.9/WG.VI/WP.21 and Addenda 1–5).
- It would be easier to use this concept, rather than attempting to supply a definition of a finance lease, with the inevitable contests as to whether the facts of particular transactions met the definition.
- As to transfers of loan participations, see the amendments to the Financial Collateral Arrangements Directive (2002/47/EC OJ L168/43 27/6/2002) that are made by Directive 2009/44/EC, published at OJ L146/37 on 10/6/2009, which will have to be reflected in UK legislation by 30 December 2010.
- SI 2003/3226, as amended by SI 2009/2462.
- This is one of the questions that has been raised in the BIS consultation in relation to the current requirements for registration of charges created by registered overseas companies.
- For the present position, see the Overseas Companies (Execution of Documents and Registration of Charges) Regs 2009 (SI 2009/1917).
- Transfers of “credit claims” (ie loans made by credit institutions) would have to be outside any registration scheme, due to the amendments that have been made to the Financial Collateral Arrangements Directive, as referred to below.
- Even in repo and securities lending transactions, which might be seen as beyond the traditional boundaries of buying and selling securities, the transferor does not retain any enforceable interest of a proprietary or contractual nature in the self-same assets as those which were sold or transferred by it. Under these types of transaction, the transferor transfers the original assets, typically debt or equity securities, on the basis that it will receive back from the recipient equivalent securities to the original securities (ie of the same issuer, type, value and denomination). The original transferor has a contractual right to receive the equivalent securities (which contractual right might, or course, be itself secured by other collateral) and so such transactions should not be characterised as involving the grant of a security interest over the original securities: see the analysis in Beaconwood Securities v Australia & New Zealand Banking Group Ltd [2008] FCA 594 and the discussion in Mills v Sportsdirect.com Retail Ltd [2010] EWHC 1072 (Ch).
- SI 2003/3226, as amended by SI 2009/2462. The Regulations will have to be further amended to take account of the amendments to be effected pursuant to EC Directive 2009/44/EC, published at OJ L146/37 on 10/6/2009, which amends the Financial Collateral Arrangements Directive (2002/47/EC OJ L168/43 27/6/2002). It will have the effect of including “credit claims” (as referred to above) within the concept of financial collateral.
Law and Financial Markets Review
Volume 4, 2010 - Issue 6